January 31, 2013

DOJ Tells Judge WikiLeaks Investigation Details Should Remain Secret

The U.S. Justice Department today urged a judge in Washington to allow the government to keep secret internal documents and correspondence that would reveal investigative techniques, confidential sources and potential targets of the ongoing WikiLeaks criminal investigation.

The Washington-based Electronic Privacy Information Center sued the government last year to try to force the disclosure of the names of any WikiLeaks supporters who may have become surveillance targets. The privacy center also wants to see any government communication with Internet and social media companies about those advocates.

In support of the request, the government submitted a series of secret declarations to the chambers of the presiding judge, Richard Roberts, articulating why none of the responsive records—including evidence summaries and confidential source statements—should be released to the public. The WikiLeaks investigation, DOJ said, is ongoing.

"EPIC’s request is a quintessential example of an improper attempt to use FOIA to force the government to open its investigative files to public inspection," Scott Risner of the DOJ Civil Division said in the court papers filed this afternoon. "But Congress did not enact FOIA to permit such unwarranted intrusion."

Risner defended the filing of three ex parte declarations, written by DOJ officials, saying that "certain information concerning the requested documents and the bases for their withholding cannot be provided publicly."

The government, Risner said, "should not be required to divulge sensitive information concerning an investigation, including non-public information concerning the scope or size of the investigation, in order to protect other sensitive information."

EPIC filed record requests to three DOJ components—the FBI, the National Security Division and the Criminal Division. The privacy group is seeking information about any individuals targeted for surveillance "for support for or interest in WikiLeaks."

The privacy group also wants to see any federal agency communication with Internet and social media companies—for instance Google and Facebook—about WikiLeaks supporters.

DOJ lawyers said EPIC is requesting information that "would reveal whether, and to what extent, the government has employed particular investigative techniques in its attempts to identify suspects and obtain evidence."

Within DOJ's National Security Division, the counter-espionage section took the lead in searching for potentially responsive files. "NSD searched all of the electronic files pertaining to the investigation of the lead CES attorney assigned to the matter," DOJ lawyers said in their court papers. "That search was sufficiently comprehensive."

Disclosure of any additional public information "regarding how NSD conducted its search," the government said, would harm the ongoing WikiLeaks investigation. Risner of DOJ said the government explained, in the ex parte submissions to the trial judge, additional information about the search.

The declarations that DOJ submitted to Roberts were filed in support of the argument that documents about the WikiLeaks investigation were compiled for law enforcement purposes and should therefore be shielded from public review. (DOJ, in the public court filing, also cited other barriers to block disclosure, including the attorney-client privilege.)

"The investigation of criminal conduct, particularly when it entails serious threats to the national security, is plainly a high-priority law enforcement duty of the department," Risner wrote.

In November 2010, WikiLeaks published American diplomatic cables on the anti-secrecy group's web site. WikiLeaks had provided thousands of cables to news outlets that included The New York Times, The Guardian and Der Spiegel. The Times published a story that month titled "Leaked Cables Offer Raw Look at U.S. Diplomacy."

Soon after the publication of the memos, Attorney General Eric Holder Jr. publicly announced the government's WikiLeaks criminal investigation.

"To the extent that we can find anybody who was involved in the breaking of American law and who has put at risk the assets and the people I have described, they will be held responsible," Holder said in remarks at the time.

DOJ lawyers said today that disclosure of the requested information "would identify potential witnesses and other individuals who have cooperated with the investigation." The FBI, for instance, according to DOJ, gave "expressed or implied assurances" that the identities of sources would remain confidential.

The government also said the FBI has withheld from disclosure information created "in relation to the pending prosecution" of Bradley Manning and "in anticipation of potential other prosecutions stemming from "the disclosure of classified information that was subsequently published on the WikiLeaks website."

A lawyer for EPIC, Ginger McCall, director of the group's open government program, wasn't immediately reached for comment this afternoon.

EPIC said in the complaint, filed in January 2012, that the group “based the request on the need for the public to obtain information about government surveillance of individuals exercising the rights of freedom of speech and association.”

The privacy center has until March 4 to file a response to the DOJ’s push to end the litigation.